Custom, Excise & Service Tax Tribunal
Mangalore Refinery And Petrochemicals ... vs Commissioner Of Central Excise on 16 May, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE COURT - I Stay & Appeal No: E/Stay/335/2011 in E/540/2011 (Arising out of Order-in-Original No: 20/2010 dated 29.11.2010 passed by the Commissioner of Customs & Central Excise, Mangalore.) Date of Hearing: 16.05.2012 Date of decision: 16.05.2012 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether their Lordship wish to see the fair copy of the Order? Seen 4. Whether Order is to be circulated to the Departmental authorities? Yes Mangalore Refinery and Petrochemicals Ltd. Appellant Vs. Commissioner of Central Excise Mangalore. Respondent
Appearance For the appellants : Shri Rajesh Kumar, Advocate For the respondents : Shri R. K. Singla, Commissioner (AR) CORAM SHRI P. G. CHACKO, HONBLE MEMBER (JUDICIAL) SHRI M. VEERAIYAN, HONBLE MEMBER (TECHNICAL) FINAL ORDER No._______________________2011 [Order per: P. G. Chacko]. This application filed by the appellant seeks waiver and stay in respect of the adjudged dues. On a perusal of the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit, we take up the appeal.
2. A team of officers of the department, who conducted audit of records of the appellant, noticed that the appellant had availed CENVAT credit on input services on the basis of documents issued by their registered offices at Mumbai, Bangalore and Delhi as Input Service Distributors. It appeared to the auditors that the service tax credits distributed to the appellant were not under documents prescribed under Rule 9(1) of the CENVAT Credit Rules (CCR), 2004 and that the appellant had availed such credits irregularly and fraudulently during the period from December 2007 to February 2009. On this basis, the department issued a show-cause notice dated 10.3.2010 to the appellant invoking the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act. This show-cause notice demanded Rs.10,86,58,073/- by way of denial of CENVAT credit. It also sought to demand interest on the above amount under Rule 14 of the CCR, 2004 apart from penalty under Rule 15 of the CCR, 2004. A similar show-cause notice dated 1.4.2010 was also issued for recovery of Rs.3,21,71,219/- from the appellant on identical grounds for the period from March 2009 to February 2010, levy of interest thereon and imposition of penalty. The demands were contested by the party in a reply to the show-cause notices. They requested the adjudicating authority for an opportunity to rectify the errors in documentation, pointed out by the audit party. This opportunity was granted to the appellant who accordingly produced on 19.10.2010 copies of certain invoices issued by their Bangalore/Mumbai/Delhi offices. Upon scrutiny of these documents, the Commissioner allowed a small part of the CENVAT credit in question and disallowed credit of Rs.9,33,58,538/- to the appellant and confirmed the demand to this extent. He also demanded interest on the amount of CENVAT credit denied to the assessee. A penalty equal to such amount of CENVAT credit was also imposed on them. The present appeal is directed against the Commissioners order.
3. The learned counsel for the appellant has submitted that they could not produce before the Commissioner all the documentary materials to establish their claim for CENVAT credit of the service tax paid on input services by their Bangalore/Mumbai/Delhi offices as Input Service Distributors. He has further submitted that, after the impugned order was passed by the learned Commissioner, the appellant could gather all the requisite invoices issued by the Input Service Distributors and is now in a position to substantiate their claim before the Commissioner, given an opportunity. In this connection, the learned counsel has invited out attention to a compilation of such invoices and allied statements, filed by the appellant. On a perusal of these records, we are of the view that, for the ends of justice, the matter should be remanded to the Commissioner for de novo adjudication based on all these documents. The learned Commissioner (AR) has fairly agreed with our view after a perusal of the documents filed by the appellant.
4. Accordingly, we set aside the Commissioners order to the extent challenged in the present appeal, and remand the issue to him for fresh decision after verification of all the relevant documents now available with the party. It goes without saying that the party should be given a reasonable opportunity of adducing evidence and of being personally heard. It is also made clear that the benefit already granted by the Commissioner to the assessee is not affected by this order.
5. The stay application also stands disposed of.
(Operative portion of this Order was pronounced in open court on conclusion of hearing) (M. VEERAIYAN) Member (Technical) (P. G. CHACKO) Member (Judicial) rv ??
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